Who can initiate a legal investigation?

At the national level and according to national law, investigating judges or prosecutors might enjoy a certain level of discretion concerning the decision whether or not to open an investigation. In cases of torture allegations this discretion is limited. International law provides that all complaints of torture or ill-treatment have to be investigated by competent authorities. Failure to conduct an investigation into the case of allegations of torture amounts to violation of a State’s obligation to ensure the right not to be tortured or subjected to other cruel, inhuman or degrading treatment or punishment.

Furthermore, investigations of torture or other cruel, inhuman or degrading treatment or punishment have to be undertaken even if no explicit complaint has been brought forward:

• According to Art. 12 of the UN Convention Against Torture national authorities are obliged to proceed to an investigation ex officio whenever there are reasonable grounds to believe that acts of torture have been committed and whatever the origin of the suspicion; 
• The Istanbul Protocol reiterates this obligation by saying that “even in the absence of an express complaint, an investigation should be undertaken if there are other indications that torture or ill-treatment might have occurred”;
• Art. 15 of the Rome Statute enables the Prosecutor of the ICC to “initiate investigations proprio motu on the basis of information on crimes within the jurisdiction of the Court”;
• The European Court of Human Rights can adopt investigative measures at the request of a party or of its own motion [3] . The European Court of Human Rights has ruled in Bati and others v. Turkey [4] that even if no complaint has been made, an investigation has to be started if there are sufficiently clear indications that torture or ill-treatment has been used.

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3. European Court of Human Rights, Rules of Court, Annex to the rules (concerning investigations), Rule A1, July 2006.
4. ECtHR, 3 June 2004, Appl.nrs.33097/96 and 57834/00, par.133 (Bati and others v. Turkey).